WR-83,375-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/9/2015 4:52:28 PM Accepted 9/10/2015 8:23:08 AM No. WR-83,375-01 ABEL ACOSTA CLERK Writ No. 4762-A RECEIVED COURT OF CRIMINAL APPEALS EX PARTE § IN THE TEXAS 9/10/2015 COURT § ABEL ACOSTA, CLERK
§ OF § SHELTON MONTGOMERY § CRIMINAL APPEALS
OBJECTIONS TO THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
NOW COMES Shelton Wade Montgomery, Applicant, and files
these Objections to the Trial Court’s Order Denying Relief, filed August
31, 2015. In support thereof, Montgomery would show the following:
I. The trial court denied Montgomery due process of law in ruling on his writ application without notifying him of his trial counsel’s filing of an affidavit, and allowing him to re- spond
Montgomery first objects to the procedural manner by which the
district court rejected his claims. Indeed, the district court’s conduct calls
into question whether Montgomery can obtain a just adjudication of his
writ.
While Montgomery’s writ was pending, the undersigned counsel’s
staff called the district court and clerk on several occasions to inquire if
1 any documents were filed. Counsel’s staff was repeatedly told that noth-
ing was of record. It now appears, however, that Montgomery’s trial at-
torney had filed an affidavit, and it simply wasn’t disclosed to Montgom-
ery. In fact, as of the date of this filing, Montgomery has never received
any document from the court.
The court nonetheless entered its findings on August 31, 2015,
without forwarding the affidavit to Montgomery or his counsel. It seems
the trial court immediately denied the writ, without providing under-
signed counsel either the opportunity to file his own proposed findings or
to respond to the affidavit.
While article 11.07 of the Code of Criminal Procedure grants trial
courts great latitude in determining the merits of writ applications, it
does not allow for this patently biased approach. On the basis of the fore-
going chronology, no reasonable person can assert that the factual deter-
minations necessary to the resolution of this case were made in a reason-
able fashion. Montgomery was not afforded even a modicum of due pro-
cess; specifically, notice and the opportunity to be timely heard.
II. Montgomery’s attorney’s affidavit, alone, did not provide enough for the court to rule on his application
2 In a case that turns on issues of credibility, it is inappropriate to
resolve controverted facts without an evidentiary hearing where wit-
nesses are subject to cross-examination. In Ex parte Byars, 176 S.W.3d
841 (Tex. Crim. App. 2005), Presiding Judge Keller noted that the most
effective way of determining the reliability of witness testimony is
through the “crucible of cross-examination.” Id. at 842 (concurring opin-
ion). Similarly, in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App.
2004), the Court stated
Affidavits . . . are widely and appropriately used in criminal and civil proceedings to determine if there are material dis- puted facts and to define exactly which facts are disputed. They are not always well-suited for resolving disputed facts. Id. at 210 (footnotes omitted).
Accordingly, in this case, the court should not decide that Mont-
gomery’s attorney’s affidavit resolves all the factual issues in this case.
Nor should the court’s decision be based merely on the fact that the court
knows the attorneys. This is an inappropriate way to make a credibility
determination. Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999),
is particularly instructive on this issue. In Gallego, the court stated:
It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant’s testimony
3 about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the fact that the defendant’s allegations were unsubstantiated and in- correctly found as a matter of law that defendant could not carry his burden without presenting some evidence in addi- tion to his own word, which is contrary to that of counsel’s. The magistrate says nothing about the internal consistency of the defendant’s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant’s credibility. Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court made specific findings of fact after an evidentiary hearing regarding defend- ant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is uncorroborated is not enough standing alone to support a credibility finding. Counsel’s testimony was also unsubstanti- ated by other evidence.
While we appreciate the concerns enunciated in Underwood, we cannot adopt a per se "credit counsel in case of conflict rule," which allows that in any case where the issue comes down to the "bare bones testimony" of the defendant against the contradictory testimony of counsel, defendant is going to lose every time. We therefore remand for a new evidentiary hearing. Because of the intervening death of District Judge C. Clyde Atkins, the case will necessarily come before a different district judge. We suggest that in view of the nature of the case, if the matter is referred to a magistrate, it be sent to a different magistrate judge.
Id. at 1198-99.
4 Indeed, the federal courts have routinely favored live witness testi-
mony. This is because an evidentiary hearing allows the trier of fact to
observe the witnesses and judge their credibility. See, Webster v. Offshore
Food Service, Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (trier of fact is
entitled to weigh the credibility of witnesses and value his testimony in
light of his demeanor on the stand); First National Bank v. Martin, 963
F.2d 809, 814 (5th Cir. 1992) (bankruptcy judge had occasion to observe
Martin and listen to his testimony, which necessarily includes the oppor-
tunity to study any changes in both his demeanor and tone of voice); Port
Arthur Towing Company v. John W. Towing, Inc., 42 F.3d 312, 318 (5th
Cir. 1995) (witness’ manner and demeanor on the witness stand weighed
against credibility); United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994)
(appellate court must give due deference to the credibility determinations
of the district court who has the opportunity to observe the demeanor of
the witnesses).
Valid judgments about credibility cannot be made from a review of
a paper record alone. Thus, even if the court were to find that counsel’s
alleged actions were sufficient, the court should have ordered a live evi-
dentiary hearing to resolve whether counsel in fact behaved as such. See,
5 e.g., Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (petitioner enti-
tled to discovery when there is factual dispute which, if resolved in peti-
Free access — add to your briefcase to read the full text and ask questions with AI
WR-83,375-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/9/2015 4:52:28 PM Accepted 9/10/2015 8:23:08 AM No. WR-83,375-01 ABEL ACOSTA CLERK Writ No. 4762-A RECEIVED COURT OF CRIMINAL APPEALS EX PARTE § IN THE TEXAS 9/10/2015 COURT § ABEL ACOSTA, CLERK
§ OF § SHELTON MONTGOMERY § CRIMINAL APPEALS
OBJECTIONS TO THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
NOW COMES Shelton Wade Montgomery, Applicant, and files
these Objections to the Trial Court’s Order Denying Relief, filed August
31, 2015. In support thereof, Montgomery would show the following:
I. The trial court denied Montgomery due process of law in ruling on his writ application without notifying him of his trial counsel’s filing of an affidavit, and allowing him to re- spond
Montgomery first objects to the procedural manner by which the
district court rejected his claims. Indeed, the district court’s conduct calls
into question whether Montgomery can obtain a just adjudication of his
writ.
While Montgomery’s writ was pending, the undersigned counsel’s
staff called the district court and clerk on several occasions to inquire if
1 any documents were filed. Counsel’s staff was repeatedly told that noth-
ing was of record. It now appears, however, that Montgomery’s trial at-
torney had filed an affidavit, and it simply wasn’t disclosed to Montgom-
ery. In fact, as of the date of this filing, Montgomery has never received
any document from the court.
The court nonetheless entered its findings on August 31, 2015,
without forwarding the affidavit to Montgomery or his counsel. It seems
the trial court immediately denied the writ, without providing under-
signed counsel either the opportunity to file his own proposed findings or
to respond to the affidavit.
While article 11.07 of the Code of Criminal Procedure grants trial
courts great latitude in determining the merits of writ applications, it
does not allow for this patently biased approach. On the basis of the fore-
going chronology, no reasonable person can assert that the factual deter-
minations necessary to the resolution of this case were made in a reason-
able fashion. Montgomery was not afforded even a modicum of due pro-
cess; specifically, notice and the opportunity to be timely heard.
II. Montgomery’s attorney’s affidavit, alone, did not provide enough for the court to rule on his application
2 In a case that turns on issues of credibility, it is inappropriate to
resolve controverted facts without an evidentiary hearing where wit-
nesses are subject to cross-examination. In Ex parte Byars, 176 S.W.3d
841 (Tex. Crim. App. 2005), Presiding Judge Keller noted that the most
effective way of determining the reliability of witness testimony is
through the “crucible of cross-examination.” Id. at 842 (concurring opin-
ion). Similarly, in Charles v. State, 146 S.W.3d 204 (Tex. Crim. App.
2004), the Court stated
Affidavits . . . are widely and appropriately used in criminal and civil proceedings to determine if there are material dis- puted facts and to define exactly which facts are disputed. They are not always well-suited for resolving disputed facts. Id. at 210 (footnotes omitted).
Accordingly, in this case, the court should not decide that Mont-
gomery’s attorney’s affidavit resolves all the factual issues in this case.
Nor should the court’s decision be based merely on the fact that the court
knows the attorneys. This is an inappropriate way to make a credibility
determination. Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999),
is particularly instructive on this issue. In Gallego, the court stated:
It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant’s testimony
3 about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the fact that the defendant’s allegations were unsubstantiated and in- correctly found as a matter of law that defendant could not carry his burden without presenting some evidence in addi- tion to his own word, which is contrary to that of counsel’s. The magistrate says nothing about the internal consistency of the defendant’s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant’s credibility. Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court made specific findings of fact after an evidentiary hearing regarding defend- ant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is uncorroborated is not enough standing alone to support a credibility finding. Counsel’s testimony was also unsubstanti- ated by other evidence.
While we appreciate the concerns enunciated in Underwood, we cannot adopt a per se "credit counsel in case of conflict rule," which allows that in any case where the issue comes down to the "bare bones testimony" of the defendant against the contradictory testimony of counsel, defendant is going to lose every time. We therefore remand for a new evidentiary hearing. Because of the intervening death of District Judge C. Clyde Atkins, the case will necessarily come before a different district judge. We suggest that in view of the nature of the case, if the matter is referred to a magistrate, it be sent to a different magistrate judge.
Id. at 1198-99.
4 Indeed, the federal courts have routinely favored live witness testi-
mony. This is because an evidentiary hearing allows the trier of fact to
observe the witnesses and judge their credibility. See, Webster v. Offshore
Food Service, Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (trier of fact is
entitled to weigh the credibility of witnesses and value his testimony in
light of his demeanor on the stand); First National Bank v. Martin, 963
F.2d 809, 814 (5th Cir. 1992) (bankruptcy judge had occasion to observe
Martin and listen to his testimony, which necessarily includes the oppor-
tunity to study any changes in both his demeanor and tone of voice); Port
Arthur Towing Company v. John W. Towing, Inc., 42 F.3d 312, 318 (5th
Cir. 1995) (witness’ manner and demeanor on the witness stand weighed
against credibility); United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994)
(appellate court must give due deference to the credibility determinations
of the district court who has the opportunity to observe the demeanor of
the witnesses).
Valid judgments about credibility cannot be made from a review of
a paper record alone. Thus, even if the court were to find that counsel’s
alleged actions were sufficient, the court should have ordered a live evi-
dentiary hearing to resolve whether counsel in fact behaved as such. See,
5 e.g., Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (petitioner enti-
tled to discovery when there is factual dispute which, if resolved in peti-
tioner’s favor, would entitle petitioner to relief, and the State has not af-
forded petitioner a full and fair evidentiary hearing).
III. The trial court has either never made findings of fact and conclusions of law, or has not alerted Montgomery that it did
This Court remanded this case in June with instruction to the trial
court to make findings of fact and conclusions of law. Montgomery has
never been alerted to any such document being entered. Thus, the trial
court either ignored this Court’s order and denied Montgomery’s writ ap-
plication without providing findings of facts and conclusion of law, or
again conducted this matter in violation of Montgomery’s right to due
process. Accordingly, this case should again be remanded for the entry of
findings.
IV. Conclusion
In response to Montgomery’s allegations that his trial attorney
failed to render effective assistance of counsel by not presenting available
character and expert testimony, the trial court simply denied the writ
6 without meaningful consideration. The court denied Montgomery any op-
portunity to respond to his trial counsel’s affidavit and entered a one-
paragraph order. Further, the court failed to follow this Court’s instruc-
tions to enter findings of fact and conclusions of law.
Montgomery has never even been provided with his trial counsel’s
affidavit, much less given an opportunity to be heard. All of these matters
must be remedied by a second remand to the trial court, with instruction
to copy Montgomery on all filings in a timely fashion and give Montgom-
ery the opportunity to respond. Further, an evidentiary hearing must be
conducted.
Prayer
WHEREFORE, PREMISES CONSIDERED, Applicant prays that
this court will reject the order denying relief and set this case for a
hearing wherein the live testimony of the witnesses may be presented.
Respectfully submitted,
___/s/ Bruce Anton________________ Bruce Anton State Bar of Texas I.D. No. 01274700
7 SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 - fax
Attorney for Applicant Montgomery
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and fore- going Objections to Findings of Fact and Conclusions of Law was mailed United States Mail, Proper Postage Affixed, to Luke M. Inman, District Attorney, 100th Judicial District Attorney's Office, 800 West Avenue, Box 1, Wellington, Texas 79095 on September 9, 2015.
___/s/ Bruce Anton________________ Bruce Anton